HomeMy WebLinkAbout10-602 Confidential
ADVICE OF COUNSEL
July 27, 2010
10-602
This responds to your letter dated June 25, 2010, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon an A with the
Governmental Body B C with regard to simultaneously serving as a [political subdivision]
D.
Facts:
You have been authorized by Individual E, an employee of the Governmental
Body B C, to request a confidential advisory from the Pennsylvania State Ethics
Commission on his behalf. You have submitted facts that may be fairly summarized as
follows.
Individual E is the A for Public Official F. You have submitted a copy of the job
specifications for the position of A, which document is incorporated herein by reference.
You state that in the coming months, there will be a vacancy in the office of D for
Political Subdivision G, Pennsylvania, as one of the Political Subdivision G Ds has
announced his intention to retire. Pursuant to [section number] of the H, [cite], the I has
the authority to fill the aforesaid vacancy in office for the balance of the unexpired term.
You state that Individual E would like to be considered for appointment to the
position of Political Subdivision G D. You state that it is Individual E’s intention to maintain
his employment as an A with the Governmental Body B C if he would be appointed to
serve as a Political Subdivision G D for the balance of the unexpired term of the vacancy.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon Individual E with regard to simultaneously
serving as an A with the Governmental Body B C and a Political Subdivision G D.
Discussion:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester to truthfully disclose all of the material facts
relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense
to the extent the requester has truthfully disclosed all of the material facts.
Confidential Advice, 10-602
July 27, 2010
Page 2
As an A with the Governmental Body B C, Individual E is a public employee subject
to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; [name],
Advice [cite]. This conclusion is based upon the job specifications, which when reviewed
on an objective basis, indicate clearly that the power exists to take or recommend official
action of a non-ministerial nature with respect to one or more of the following: contracting;
procurement; administering or monitoring grants or subsidies; planning or zoning;
inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact
is greater than de minimis on the interests of another person.
If Individual E would be appointed as a Political Subdivision G D, he would in that
capacity be a public official subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
(j)Voting conflict.—
Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed with
the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a matter
before it because the number of members of the body required
to abstain from voting under the provisions of this section
makes the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the
case of a three-member governing body of a political
subdivision, where one member has abstained from voting as
a result of a conflict of interest and the remaining two members
of the governing body have cast opposing votes, the member
who has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
"Conflict” or “conflict of interest."
Use by a public
official or public employee of the authority of his office or
Confidential Advice, 10-602
July 27, 2010
Page 3
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
"Authority of office or employment."
The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from using the authority of public office/employment or confidential information
received by holding such a public position for the private pecuniary benefit of the public
official/public employee himself, any member of his immediate family, or a business with
which he or a member of his immediate family is associated.
The use of authority of office is not limited merely to voting, but extends to any use
of authority of office including, but not limited to, discussing, conferring with others, and
lobbying for a particular result. Juliante, Order 809.
Subject to certain statutory exceptions, in each instance of a voting conflict, Section
1103(j) of the Ethics Act requires the public official/public employee to abstain and to
publicly disclose the abstention and reasons for same, both orally and by filing a written
memorandum to that effect with the person recording the minutes.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not
appear to be any statutorily-declared incompatibility precluding simultaneous service as an
A with the Governmental Body B C and a Political Subdivision G D.
Turning to the question of conflict of interest, where simultaneous service would
place the public official/public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. See, McCain, Opinion 02-009. Where an inherent
conflict would exist, it would appear to be impossible, as a practical matter, for the public
official/public employee to function in the conflicting positions without running afoul of
Section 1103(a) of the Ethics Act.
Absent a statutorily-declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
would be required to abstain, and in each instance of a voting conflict, to abstain and
satisfy the disclosure requirements of Section 1103(j) as set forth above.
Confidential Advice, 10-602
July 27, 2010
Page 4
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude simultaneous service as an A with the
Governmental Body B C and a Political Subdivision G D. Consequently, such
simultaneous service would be permitted within the parameters of Sections 1103(a) and
1103(j) of the Ethics Act and expressly conditioned upon your performing the duties of both
positions without an overlap of time. If you would be required to work particular hours in
either position, then pursuant to Section 1103(a) of the Ethics Act, you could not perform
the duties of the other position during those same hours.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As an A with the Governmental Body B C, Individual E is a public
employee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics
Act"), 65 Pa.C.S. § 1101 et seq. If Individual E would be appointed as a D for Political
Subdivision G, Pennsylvania, he would in that capacity be a public official subject to the
provisions of the Ethics Act. Subject to the restrictions, conditions and qualifications set
forth above, Individual E may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve as an A with the Governmental Body B C and a Political Subdivision
G D. Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, this Advice is a complete defense in
any enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received at
the Commission within thirty (30) days of the date of this Advice pursuant
to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service, or by FAX
transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
Robin M. Hittie
Chief Counsel